Organization Does Not Have To Allege Prejudice To Sue Under Brown Act; Court Cannot Use Judicial Notice To Support Challenge To Suit

CATEGORY: Public Education Matters
CLIENT TYPE: Public Education
DATE: Feb 25, 2021

Two non-profit organizations, Livable California and Community Venture Partners became concerned about whether the Association of Bay Area Governments, a joint power authority of nine San Francisco Bay Area counties and over 100 cities located therein, followed the requirements of the Ralph M. Brown Act, which guarantees the public’s right to attend and participate in meetings of local legislative bodies. ABAG’s governing Board of Directors, comprised of county supervisors, mayors, and city councilmembers, is subject to the Brown Act.

On January 17 and 18, 2019, ABAG convened a meeting to consider whether its Board should sign a housing and transportation development proposal. During the meeting, the Board (1) rejected a motion to postpone a vote on the proposal by “a show of hands,” which was reported as a “voice vote” in the minutes of the meeting; (2) approved a motion to close discussion on the proposal by “a show of hands,” which was not reported in the minutes; and (3) adopted an amended proposal by a “roll call vote,” which was reported in the minutes as a “vote” that listed the name and vote of each member present with no abstentions and the names of absent members.

In May 2019, the organizations filed a lawsuit in trial court alleging the Board violated Government Code Section 54953 subdivision (c)(2) regarding reporting the votes on the motions concerning the proposal. Specifically, the organizations argued the vote procedures for the motion to postpone a vote, and the motion to close discussion did not comply with the Brown Act because there was not a verbal or written announcement publicly reporting the vote or abstention of each individual member. The organizations also argued the improper reporting of the motion to postpone a vote rendered the later vote on the amended proposal null and void. The organizations further argued the Board’s Brown Act violations prejudiced them.

ABAG filed a challenge, to the organizations’ lawsuit and argued the organizations had not and could not allege facts sufficient to support any relief for a Brown Act violation. The trial court agreed with ABAG and dismissed the lawsuit. The organizations appealed.

The trial court originally found the organization’s lawsuit was deficient because the organizations had not and could not allege facts demonstrating ABAG’s alleged Brown Act violations harmed them. However, the Court of Appeal held it was not necessary for the organizations to allege harm at this stage in the proceedings.

The trial court also originally found the organization’s lawsuit was deficient because there was no live controversy between the parties. The trial court reached this conclusion based on the judicially noticed “transcribed portion” of an ABAG meeting held on May 16, 2019. The Court of Appeal held that the trial court could not rule the lawsuit moot based on documents submitted in support of the challenge without allowing the parties an opportunity to present evidence regarding the meaning of the statement made during the May 16, 2019, meeting. This created an incomplete evidentiary hearing. Additionally, the Court of Appeal could not determine that the case was moot based on additional supporting documentation that ABAG submitted.

The Court of Appeal ruled ultimately that the trial court must overrule ABAG’s challenge because the organizations pleaded sufficient facts to withstand dismissal at this stage in the proceedings, and the Court sent the case back to the trial court for further proceedings.

New Livable California v. Ass’n of Bay Area Governments (2020) 59 Cal.App.5th 709.

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